One of the more striking things about all of the ink that has been spilled over California’s now- infamous Proposition 8, and its long legal aftermath, is the almost reflexive assumption on all sides that marriage, somehow, is a norm, a desirable norm. And so the argument swiftly becomes an argument about normalcy: about who is normal; and abut who may be privileged to participate in normalizing social institutions like marriage.

There is today a pervasive assumption about the normalcy and automatically privileged status for marriage, especially in the Church. But as Stephen Schloesser has clearly shown, in the article I summarised here this morning, this privileged status was given by the church only in the twelfth century - and was then more about property rights than about the importance of the family, which is the usual reason given today. It has nothing to do with the early church, which discouraged children and saw marriage only as a necessary evil to provide a licit for men's undesirable sexual urges, or with the Gospels. Ruprecht reminds us that Jesus was single. (We also know that he encouraged his disciples to leave families behind, to follow him.)

[ad#In- post ]

In falling over ourselves to ensure legal equality for same sex and opposite sex couples, are we not ignoring the inequality that remains for those who are single - discrimination that particularly affects the gay lesbian and trans community?

On the constitutional side of the ledger, the question hinges on a legal conception of discrimination, regarding what forms of discriminating judgments a secular state and secular laws are permitted to make. To use the jargon of the courts, any state that wishes to make “discriminating judgments”--that is, to distinguish one group of citizens from others according to some social taxonomy, and thus to set them apart as a group--will be subject to legal “scrutiny,” scrutiny that permits different levels of “strictness.”

For example, if the modern state ever wishes to use racial categories in making policy, then, because of our checkered and very bloody racial history, these discriminating laws and policies will be subject to the very strictest scrutiny. (That is what has bedeviled affirmative action policies of late; even using such categories for the noblest of purposes is constitutionally suspect, at least at the outset.)

Our current tax laws also rely on discriminating judgments according to categories of social class, and they are subject to even less severe scrutiny; the rich pay a higher percentage than the poor, and that is a discriminating judgment that does not seem too discriminatory... to most.

This is an important and neglected topic. I firmly endorse the importance of granting marriage equality to those who want it, but I do not accept that it should be obligatory for all. There is an obvious need for childbearing to maintain the human race, but that does not mean we must all do so. (There is an even more immediate need to maintain a constant food supply - but that does not mean we must all be farmers.)

For those who do not want children, it may well be that many will be able to find emotional support, companionship, and practical help with daily obligations in a committed partnership with one other. Other people, however, will find it suits them better to follow more directly the example of Jesus Christ - committed not to a single person, but in a network of loving relationships.

Here's Ruprecht again:

As I have listened to this debate unfold, I have been puzzling over a different discriminating judgment, one that has not received the attention it deserves, and one that brings me back to the singleness of the Christian Savior.

How can a secular state justify its desire to discriminate between married persons and single persons? ..........

And so the end result of this long debate—and it will be a long one—may have the unintended consequence of lending a newly aggrieved social group a more public voice: those single or quietly co-habitating persons who are tired of hearing arguments about the legitimacy or the sanctity of marriage (marriage was always the most secular of sacraments, after all, even in the Middle Ages).

The end results of the legal challenges currently being pursued by all sides on this question may be as unexpected as they will be intriguing: the realization that a secular state cannot justify its continued involvement in the social institution of marriage.

But this outcome may well prove to be a form of secularism that even the most strident of secularists may have a hard time accepting. That is how deep the cultural commitment to such a social convention runs in the United States today. Jesus may not have been married, but he went to weddings and even blessed one with wine.

But he did not marry himself, and the modern state would not have recognized his relationship with the mysterious Mary at all. No tax breaks for Jesus and the Magdalene. So what to make of the legal sanction of a discriminating judgment that would make the Savior a second class secular citizen?